Walsh v Police

[2014] NZHC 320

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000140 [2014] NZHC 320

BRITTANY JULIE PATRICIA WALSH

v

NEW ZEALAND POLICE

Hearing:                   27 February 2014

Appearances:           J E Bayley for Appellant

K J Basire for Respondent

Judgment:                28 February 2014

JUDGMENT OF DUNNINGHAM J

[1]      This  is  an  appeal  against  two  aspects  of  the  sentence  imposed  on  the appellant, by the District Court in Christchurch on 13 December 2013, for a second excess blood alcohol offence.

[2]      The appellant was sentenced to:

(a)      community detention for a period of four months with a curfew period of 7.00 pm until 7.00 am, Monday to Sunday,

(b)community  supervision  for  a  period  of  one  year  with  a  special condition that the appellant attend an assessment for alcohol and drug treatment  as  directed  by  a  probation  officer  and  to  attend  and complete counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation

officer,

WALSH v NEW ZEALAND POLICE [2014] NZHC 320 [28 February 2014]

(c)       disqualification from holding a driver’s licence for one year from

13 December  2013  with  authorisation  to  apply  for  a  zero  alcohol licence at the end of the disqualification period; and

(d)      indefinite disqualification from holding a driver’s licence.

[3]      The appeal is against the community detention aspect of the sentence and the length of the period of community supervision.    The effective period of disqualification of at least a year is not appealed, given that is mandatory under the provisions of s 65, 65B and 100 of the Land Transport Act 1998.

Background

[4]      The appellant is a 23 year old woman, of otherwise good character, who is employed full-time as a legal secretary.

[5]      In  December  2010  she  was  convicted  of  driving  with  an  excess  breath alcohol  level.     The  level  of  alcohol  on  her  breath  on  that  occasion  was

843 micrograms of alcohol per litre of breath.  She was fined $800 with Court costs of $132.89 and disqualified from driving for six months for that offence.

[6]      She committed the present offence at around 1.00 am on the morning of

21 September 2013.   She was found driving on Jacks Point Road near Hanmer Springs   after   leaving   a   local   nightclub   to   return   to   her   accommodation, approximately one kilometre away.   An evidential breath test showed 1,076 micrograms of alcohol per litre of breath.

The District Court decision

[7]      In the District Court, the sentencing Judge noted that aggravating features of the offence, being the high level of excess blood alcohol, and the previous conviction for driving with an excess blood alcohol level in 2010.  He also acknowledged the positive factors, being that she was in “sound employment”, had the support of her family and that she was motivated to deal with the issues underlying the offence.  He noted the assessment that she was at a low risk of reoffending, but concluded “the

level of alcohol is too high and the rapidity with which you have offended is also too

speedy”.  For these reasons, he chose to impose a “punitive” sentence.

Submissions

[8]      Mr Bayley’s submissions for the appellant, primarily focused on the sentence being out of step with other sentences for the comparable offence.  As was noted in Clotworthy v Police,1  “High Court Judges need to be aware of sentencing levels being imposed generally in the District Court.  After all, the District Court is the primary interface between the Courts and their criminal jurisdiction and the community”.2

[9]      In support of his assertion that the sentence of community detention was erroneous, he pointed to the general proposition enunciated in previous cases that “a fine together with disqualification is the usual sentence imposed on second drunk driving offences”.  He noted that the pre-sentencing report recommended community supervision/intensive supervision, rather than community detention and that, given Ms Walsh was assessed as having a low risk of reoffending and a low risk of harm, community detention was not necessary for the purposes of s 69C(1)(a)(i) of the Sentencing Act 2002.   He also observed that the requirement to wear electronic monitoring equipment in her place of employment, and the practical difficulties that created, had not properly been considered.

[10]     In respect of the length of community supervision imposed, he observed that that was the maximum period of supervision available, whereas the minimum was six months.   He noted that this type of sentence, rather than a fine, could be considered    excessive,    particularly    when    gauged    against    s    13    of    the Sentencing Act 2002 and where Ms Walsh was self-motivated to rehabilitate so there was no need for more than the minimum period of supervision to be imposed.

[11]     Ms  Basire,  for  the  respondent,  said  that  the  aggravating  features  of  the offence, in particular, the short period between the two offences and the very high

levels of excess breath alcohol, increased the seriousness of the offending to a level

1      Clotworthy v Police (2003) 20 CRNZ 439.

2 At [19].

where a fine would not have been adequate response.  It was therefore reasonable for the Judge to add a punitive element to the sentence besides the rehabilitative aspect. However, she also accepted that, in light of the decision in Paterson v New Zealand Police,3  there was some force in Mr Bayley’s submissions that the totality of the sentence was out of step with other comparable cases.  If another sentence was to be substituted,  her  proposal  was  a  fine  of  around  $2,000  plus  a  shorter  period  of

supervision.

Approach to appeal

[12]     The appeal is to be determined in accordance with the provisions of s 250 of the Criminal Procedure Act 2011.  To allow the appeal, I must be satisfied that there is an error in the sentence imposed and that a different sentence should be imposed.

Discussion

[13]     Section 13 of the Sentencing Act 2002 is pivotal to my consideration.   It directs the Court to impose a fine unless the Court is satisfied that a fine would not achieve the purpose for which the sentence is imposed.  The sentence imposed here was a sentence “two bands” above the sentence of a fine as set out in the hierarchy of sentences in s 10A of the Sentencing Act.

[14]     There is no express reference to s 13 of the Sentencing Act 2002 in the decision and, while there are occasions where it is appropriate to make the inference that s 13 has been considered, that is not apparent in this case.  I am not satisfied that the decision explains why the high penalty imposed in this case was justified.

[15]     For these reasons, I consider that, when looked at in totality, the sentence significantly exceeds that imposed in comparable cases.  For example, in Paterson, the appellant had a breath alcohol reading of 1089 micrograms of alcohol per litre of breath and had a conviction for the same offending only two  years prior.   The sentence imposed by the District Court Judge in that case, of disqualification plus

150 hours community work and 12 months supervision, was held to be “manifestly

excessive  and  well  out  of  kilter  with  sentences  that  are  imposed  for  a  second

3      Paterson v New Zealand Police (High Court, Auckland, CRI 2012-404-254, 9 October 2012.

offence”.  The Court therefore substituted a fine of $2,250 for the community work and supervision sentences imposed.

[16]     Similarly, in Palmer v Police,4 another case of a second conviction for excess blood alcohol, a sentence of 120 hours community work was quashed and, instead, a fine of $2,000 was imposed in addition to a disqualification period of 12 months. Again, it was held that the Judge had not obviously considered the provisions of s 13 of the Sentencing Act, and that “a review of recent similar cases indicates a fine, together with disqualification, is the usual sentence imposed on second drink driving offences”.

Outcome

[17]     There was some discussion with counsel about the appropriate sentence to be imposed, should I decide to allow the appeal.  Mr Bayley for the appellant, suggested either a six month period of supervision plus the requirement to attend an assessment for alcohol and drug treatment and complete such counselling treatment or programme  as  recommended.     Alternatively,  he  suggested  a  fine  of  $2,000 (calculated by reference to the fine imposed in Paterson) plus that the appellant provide an undertaking that she would complete the assessment.

[18]     Ms Basire for the respondent, considered that a fine plus a shorter period of supervision was appropriate.  In her view, it was important that the assessment for alcohol and drug treatment was completed and this could be best be assured through the imposition of community supervision.

[19]     In the end, I have decided to adjust the sentence to the least extent necessary to ensure that it more fairly reflects the tariff for this kind of offence.   In the appellant’s circumstances, and having regard to the conditions of community supervision, I consider this sentence does have a punitive element for this appellant. She will be required to leave her place of work on a weekly basis to report.  There is an element of stigma to that and it will require discussion of that with her employer.

Community supervision is higher in the hierarchy of penalties I can impose under

4      Palmer v Police (High Court, Auckland, CRI-2009-414-262, 5 February 2010).

s 10A of the Sentencing Act than a fine and in the circumstances I consider a six month period of supervision, coupled with the requirement to complete the assessment and any recommended treatment or programme, is a more appropriate way of addressing the offending than the imposition of a fine.

[20]     Accordingly, the appeal is allowed.  The sentence of community detention for a period of four months, and of community supervision for a period of one year with specified conditions is quashed.   It is replaced with a sentence of community supervision for a period of six months with a special condition that the appellant attend an assessment for alcohol and drug treatment as directed by a probation officer, and to attend and complete counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer.

[21]     The disqualification aspects of sentence imposed by the District Court are, of course, not appealed and remain in effect.

Solicitors:

Rhodes and Co., Christchurch

Raymond Donnelly and Co., Christchurch